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Cambodia: Life Sentences of Khmer Rouge Officials Upheld

(Dec. 1, 2016) On November 23, 2016, the Supreme Court Chamber (SCC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC), a special Cambodian human rights court, upheld on appeal the life sentences of two senior Khmer Rouge officials, Nuon Chea, former Deputy Secretary of the Communist Party of Kampuchea, and Khieu Samphan, former Head of State of Democratic Kampuchea. However, the Chamber reversed in part and upheld in part the convictions on which the sentences were based. (Press Release, Supreme Court Chamber Quashes Part of the Convictions, Affirms Life Imprisonment for Nuon Chea and Khieu Samphan in Case 002/01, ECCC website (Nov. 23, 2016); Alexis Wheeler, Cambodia Court Upholds Life Sentences of Khmer Rouge Officials, PAPER CHASE (Nov. 23, 2016); Appeal Judgement, Case File/Dossier No 002/19-09-2007-ECCC/SC, ECCC website (Nov. 23, 2016).) Nuon Chea, 90, and Khieu Samphan, 85, were the first high-level leaders of the former Democratic Kampuchea regime, which was responsible for the deaths between 1975 and 1979 of an estimated  two million Cambodians. (Cambodian Court Upholds Life Sentences for Khmer Rouge Leaders, GUARDIAN (Nov. 23, 2016.)

Reportedly, “[t]he number of allegations against Chea and Khieu Samphan – and the complexity of their cases – was so vast that the court split their trials into a series of smaller hearings in 2011, fearful the pair might die before justice could be served.” (Cambodian Court Upholds Life Sentences for Khmer Rouge Leaders, supra.) The pair was convicted in August 2014 after “a two-year trial focused on the forced evacuation of around two million Cambodians from Phnom Penh into rural labour camps and the murders of hundreds of enemy soldiers at one of several execution sites.” (Id.) The men had been indicted on September 15, 2010. (Case 002/01, ECCC website (last visited Nov. 23, 2016).)

The appeal to the SCC was against the trial judgment in Case 002/01, which had convicted the two former communist leaders of the crimes against humanity “of murder, persecution on political grounds and other inhumane acts in relation to the evacuation of Phnom Penh immediately after the fall of the city” on April 17, 1975. (Press Release, supra.) The SCC affirmed the accused’s conviction for the crime against humanity of “other inhumane acts” in connection with “the second phase of population transfers that occurred between 1975 and 1977,” when civilians were evacuated from cities by force and placed in rural labor camps, where they died from torture, starvation, and execution, and the SCC also “entered a conviction for the crime against humanity of murder.” (Id.; Wheeler, supra.)

The SCC reversed, among other convictions, the Trial Chamber convictions “for the crime against humanity of extermination in relation to the evacuation of Phnom Penh and the second phase of population transfers” and for “the crime against humanity of persecution on political grounds,” finding that the evidence submitted in connection with the former crime “did not establish beyond reasonable doubt the requisite killings on a large scale committed with direct intent” and that the evidence submitted in connection with the latter crime had not established that the transfers were discriminatory. (Press Release, supra.)

Although the SCC had found errors in certain conclusions reached by the Trial Chamber and considered whether it should therefore revise the life sentences the lower chamber imposed, it determined:

Given that the gravity of the crimes should be reflected in the sentence, in view of the massive scale of the crimes; the complete lack of consideration for the ultimate fate of the Cambodian population, especially the most vulnerable groups; the fact that the crimes were not isolated events, but occurred over an extended period of time; and the significant roles of the Accused, the Supreme Court Chamber concluded that the imposition of a life sentence for each of the Accused was appropriate and therefore confirmed the sentence imposed by the Trial Chamber. (Id.)

Crimes against humanity in connection with the offenses in Cambodia are defined in article 5 of the law that established the ECCC. (Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (2001, as amended on Oct. 27, 2004 by NS/RKM/1004/006), ECCC website (unofficial English translation as revised Aug. 26, 2007).)

The ECCC and Its Chambers

The ECCC is a special Cambodian court, often called the Khmer Rouge Tribunal or the Cambodia Tribunal, set up in 2006 pursuant to a 2003 agreement between Cambodia and the United Nations to prosecute high-level Khmer Rouge leaders and funded by international assistance provided by the U.N. Assistance to the Khmer Rouge Trials (UNAKRT). (Introduction to the ECCC, ECCC website (last visited Nov. 28, 2016); Cambodian Court Upholds Life Sentences for Khmer Rouge Leaders, supra; see also Constance Johnson, Cambodia; United Nations: Indictment for Crimes Against Humanity, GLOBAL LEGAL MONITOR (Mar. 31, 2015).)

The ECCC only has the authority “to prosecute two categories of alleged perpetrators for alleged crimes committed between 17 April 1975 and 6 January 1979: senior leaders of the former Democratic Kampuchea and individuals deemed “to be most responsible for grave violations of national and international law.” (Introduction to the ECCC, supra.)  The ECCC is handling four cases: “Case 001:  Defendant: Kaing Guek Eav alias Duch; Case 002: Defendants: Khieu Samphan, Ieng Sary (deceased), Nuon Chea, Ieng Thirith (currently under judicial supervision after having been found unfit to stand trial); Case 003: Defendant: Meas Muth; Case 004: Defendants: Im Chaem, Yim Tith, Ao An.” (Id.; Johnson, supra.)

The judicial chambers of the ECCC consist of a Pre-Trial Chamber, a Trial Chamber, and the SCC, with the first two chambers comprising three Cambodian and two international judges and the SCC comprising four Cambodian and three international judges. SCC decisions require an affirmative vote of at least five out of the seven judges. (Judicial Chambers, ECCC website (last visited Nov. 28, 2016).)